Jurisprudence: Precedents

Precedents

Introduction

Precedents is an important source of law. It is as important as customs in the law. Cicero enumerates res judicata as the source of law. The notion of precedents have the same force as that of powers or any other statute.

Meaning

According to Gray: A precedent covers everything said or done which furnished a rule for the subsequent practice.

According to Keeton, a judicial precedent is a judicial decision to which authority has, in some measure, been attached.

According to Jenks, a judicial precedent in a decision by a competent court of justice upon a disputed point of law, which becomes a guiding force for all the inferior courts.

In short, we can say precedent means the guidance or authority of past decisions for future cases.

Reasons for the reception of Precedents

The justification of the binding rule of precedents is because:

It is based on practical experience rather than logic only.

It is based on convenience.

It prevents the labour of judges as the interpreter of law.

It prevents error in judgement.

It prevents partiality on the part of judges.

It helps lawyers to be cautious in view related to the development of judicial precedents.

It helps lawyers to present previous case laws as incidences related to their present case.

Position of Precedent in England:House of Lords

The House of Lords is the Apex authority of law making in England. We see the following judgements illustrating the importance of precedents:

London Street Tramways Co. Ltd. vs London Country
In this case it was held that the interference of judicial precedents prevent the abstract justice and inconvenience.

Attorney General vs Dean of Windson

The precedents set an example binding upon itself judicially as much as upon all inferior tribunals.

Beamish vs Beamish
The binding nature of ratio decidendi has been discussed in this case.

Supreme Court of the United Kingdom

In October 2009, the Supreme Court of the United Kingdom replaced the appellate committee of the house of lords as the highest Court in the United Kingdom. It consists of 12 members including Chief Justice of the Supreme Court. The Court hears appeals related to the point of law of greatest importance.

It is of great importance in England, Wales, Northern Ireland related to the criminal matters. However, in case of United Kingdom it is related only to the civil matters.

Court of Appeal and Court of Criminal Appeal

The decisions of both the court of Appeal and Court of Criminal Appeal are binding on the Lower courts. However, the Court of Appeal is not bound to follow its own decisions in case of:

Lyrus vs Stepney Borough Conneit, 1940

It overrules the decision of House of Lords, though it is not expressly overruled. But still the court is bound to refuse to follow it.

Young vs Bristol Aeroplane Co. Ltd. 1944

In case of per incurium i.e. certain situation which was noticed by the court later which was important to arrive at a decision.

King vs King, 1943

The court is not bound to follow the decisions which are conflicting in nature.

Position of Precedent in India

The doctrine of precedents was not known t=in India before the establishment of British Rule in India. It got the judicial recognition under Section 212 of the Government of India Act, 1935.

Supreme Court

Article 141 of the Constitution of India provides that the law declared by the Supreme Court shall be binding on all courts within the territory of India.

High Courts

In India, the obiter dicta of the Supreme Court is binding upon the High Courts if the Supreme Court has enunciated or declared as per some principles of the law.

Ratio Decidendi and obiter dicta

Ratio Decidendi of a decision is the principle of law formulated by the judge for the purpose of deciding the cases.

Obiter Dicta are the opinions of the eminent jurists while deciding the case. These are not binding in nature.

How to find the ratio decidendi of a case?

The easiest way to find the ratio decided is to read the judgment and find which are the facts that are the necessary facts to deduce the reasoning used in the case. This includes those facts which helps us to know what exactly has happened.

For example, in case of a murder case, it is immaterial whether the person was wearing a black or blue shirt. However, the necessary thing to know is whether he was drunk or sober? Whether he prepared for the murder in advance or it was due to fit of anger?

Similarly, in case of accident it is immaterial if it was hit by a BMW or Audi. However, it is necessary to know whether the person was driving at a permissible speed limit or not? Whether he was careless during the driving or not?

Principles/ Methods to find Ratio

The discovery of ratio decidendi can be a big struggle for a novice. However, the easy methods are listed as below:

Classification or abstraction method

The ascertainment of the ratio decidendi of a case of process of abstraction. The higher the abstraction, the wider is the ratio decidendi.

2. Reversal Test

This is devised by Professor Wambaugh. In this we negate every statement. However, in can there is a change in the ratio decidendi in case that statement is missing, Then, such a statement is necessary statement to reach at the conclusion.

3. Material Fact Theory

This is derived by Professor Goodhart. In this he said that we should look at the material facts and see if they coincide with the previous ratios.

Obiter Dicta

Obiter Dicta literally means statements by the way. This only have the persuasive efficiency. In the case of Jaiwant Rao and other vs State of Rajasthan, the Court observed a 'dicta' which does not form the integral part of the chain of reasoning directed to the question decided may be termed as 'dicta'.

Do the Judge make Law?

There are two theories regarding the question whether Judge can make law or not. these are as follows:

1. Declaratory Theory

According to this theory the judge just declares the already existing law. They do not create any new law. This theory is supported by Hale, Blackstone, Carter.
However, this theory was opposed by Austin and Bentham.

2. The original lawmaking theory

According to the declarative theory the Judges also make law in the same sense in which the legislator makes it. This theory was supported by Lord Bacon, Dicey, Gray and Salmond. In England, it is also known as judge made law.

Advantages of case laws

Case Laws are the outcome of the practical problems of the people.
In case laws it is the ratio that matter. A judge can take his times to explain the principles he lays down.
A judge in formulating the rule of law is trying to actually solve the concrete problem.
Case law is bound to be of fine workmanship.
It is formidable by people who have special knowledge and training in law.

Conclusion

From the above discussion, we see that case laws and precedents form the basis of the modern-day jurisprudence. However, we see that it is necessary that the law must be flexible. We see new judgements such as the Triple Talaq case, Joesph Shrine vs UOI and Shayara Bano Begum which show how the law evolved with the passage of time. Thus, the case laws and precedents form an inseparable part of legal education and jurisprudence.

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Jurisprudence: Precedents

Precedents

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